Squeezing Mukasey on Torture

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Nominee for Attorney General Michael Mukasey during his nomination hearing in Washington, D.C.

George W. Bush has always wielded moral clarity as a weapon, beating Democrats by declaring his high purpose and principled resolve. But in recent months, as critics have shined new light on domestic spying and harsh interrogation techniques in the morally ambiguous world of counter-terrorism, Bush has had to retreat to gray-area defenses, using tailored definitions and legalisms to dodge questioners. And now, as Democrats raise the pressure on embattled Attorney General nominee Michael Mukasey to state his opinion on whether or not waterboarding constitutes torture, it is the President's opponents who are using moral clarity against him.

Mukasey's (and the White House's) problems began during his Oct. 18 Judiciary Committee confirmation hearing to replace Alberto Gonzales as Attorney General. At the hearing veteran Illinois Senator Dick Durbin asked Mukasey a deceptively simple question: Is waterboarding torture? Waterboarding simulates drowning, and involves constraining a person, restricting their breathing and pouring water on all or part of their face. Some version of it is widely reported to have been used by U.S. interrogators in an attempt to extract information from high-level terrorism suspects in the wake of 9/11.

It is also widely labeled as a form of torture by current and former U.S. military leaders, human rights organizations worldwide and prominent Republicans, including presidential candidate John McCain and Senator Lindsey Graham. Torture is illegal in the United States, and Bush and the Administration have repeatedly asserted that they have not and do not torture. But Bush has declined to define torture, and Durbin's question cut to the core of that obfuscation.

Mukasey at first declined specifically to declare waterboarding torture, saying, "I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don't think it would be responsible of me to do that." Durbin pressed on, citing cases where Americans and foreigners alike have been prosecuted and convicted for waterboarding. Finally Mukasey said, "It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else."

That is about as strong a statement as one is likely to get from a nominee under the circumstances and should have been enough to satisfy Democrats. But their goal is not simply to get Mukasey on the record with regard to waterboarding but publicly to corner Bush and the Administration on torture. So, in an uncharacteristically savvy national security play, Durbin drafted a letter to Mukasey asking him to state — or rather, to restate — that waterboarding is torture and therefore illegal.

Until he came up against that question, Mukasey had been a shoe-in to replace Gonzales. But now Mukasey and the Administration are in trouble. Within hours of circulating his letter among Judiciary committee colleagues, Durbin had all the Democrats as co-signers. The next day the Committee's ranking Republican, Arlen Specter, also asked Mukasey to clarify his position. Over this last weekend, both Senators Graham and McCain denounced waterboarding and called on Mukasey to do the same. Democratic presidential contender Chris Dodd has said he'll vote against Mukasey if he doesn't denounce waterboarding, upping the pressure on the other candidates with votes on the issue, Senators Clinton, Obama and Biden.

Mukasey sent his response to Democrats Tuesday and while he said the waterboarding procedure described in their letter "seem over the line" and was "repugnant" he declined to declare it illegal. He said he could not do so because he doesn't know whether the U.S. has used it, doesn't want to jeopardize interrogators and doesn't want to give America's enemies insight into U.S. techniques. "They are putting him in an untenable position on this," says White House spokesman Tony Fratto.

Some Democrats on the committee had tried to help Mukasey get out of the box he's in. Harold Kim, a former Specter staffer who works in the White House Counsel's office, has been negotiating with Judiciary Committee Democrats, trying to find language they can live with. But attempts to compromise with Congress have met resistance from Cheney's office, and when it comes to interrogation techniques, the Vice President and his chief of staff, David Addington, have notoriously pushed for presidential authority to go unchecked by the legislative branch. White House spokesman Tony Fratto says there were no negotiations over the language of Mukasey's response.

In the public sphere, though, waterboarding is not about legalisms but about moral clarity. Cheney famously responded to a question about a "dunk in the water" for terrorism suspects by saying that to him it was a no-brainer that it was an acceptable interrogation technique. McCain, who was tortured as a POW in Vietnam, sees the issue differently. He told ABC's George Stephanopoulos Sunday, "Anyone who says they don't know if waterboarding is torture or not has no experience in the conduct of warfare and national security. This is a fundamental about America. It isn't about an interrogation technique. It isn't about whether someone is really harmed or not. It's about what kind of a nation we are. We are a nation that takes the moral high ground. If we engage in a practice that was invented in the Spanish inquisition, which was used by Pol Pot in Cambodia in that great genocide, is now being used on Buddhist monks in Burma, and we're going to be the same as that? How do we keep the moral high ground in the world? I would never use that, and find some other practices."

Turning waterboarding into a litmus test on torture was a morally clear, politically savvy move by the Democrats, but it is not without its own risks. Now that Mukasey has responded with a hedge democrats practically helped write, the burden of moral clarity is on them. Will they reject Mukasey on the moral absolute of torture, or will they quietly abandon the moral high ground in the interest of getting a competent hand on the wheel at the demoralized Justice Department? Before this is over, George Bush may not be the only one to learn that moral clarity can be a double-edged sword.